The Head and Hoof of the Law - 2
Judicial Activism or Executive Excessivism, or Both
By Mohammad Ashraf Chaudhry
Pittsburg , CA
The main purpose of the Constitution, as defined in the text books, is “Interpreting laws; determining the meanings of laws;, and settling societal disputes”. All the three branches, namely the Executive; the Legislative and the Judiciary are sworn to honor and uphold the Constitution, but “the Supreme Court alone reviews the constitutionality of actions by the other two branches, at least in those cases brought before it”, says Michael Parenti in his book, Democracy, pg. 289.
The real spirit of the Constitution is enshrined and “even greater significance is the Court’s power of judicial interpretation to decide the intent and scope of laws as they are applied in actual situations”.
And the Judges in the United States are appointed by the President. In Pakistan and sometimes in India too, it becomes contentious as to whose views with regard to the nomination of Justices/judges should carry more weight - the President’s or the Chief Justices’?
Some consider the Constitution as a ‘vital force’, having a life of its own. They equate it to a tree, having a life of its own, having the ability to grow. For them, it is elastic and living. They also expect the Supreme Court Justices to be ‘above the normal prejudices of other persons’. But Justices are like other people, human beings. They have their own ideologies and political likes and dislikes. So the Constitution is what the nine (in Pakistan 17 and in India 31) non-elected people for life say. Chief Justice Hughes once famously said, “We are under a Constitution but the Constitution is what the judges say it is”, (Dexter Perkins, Charles Evans Hughes, pg 16).
But not so in Pakistan, even a unanimously passed verdict by all the 17 Justices of the Apex Court ( December 16, 2009) on the fate of the NRO still remains unacceptable to the people it affected most. Battalions of law-experts such as Asma Jilani, and Barrister Aitzaz Ahmed; and anchors like Nazir Naji, Rauf Klasra, Dr. Shahid, and Hamid Mir to count only a few, are thread-bare dissecting the verdict adding their share to an erstwhile confused situation. What appeared so simple, became a Herculean knot in the hands of these “law-smiths”. Asma Jilani termed it a sort of judicial over-reach. Aitzaz rose to great heights because of his defense of Iftikhar Muhammed Chaudhry, and he will fall too because of him. He is finding it hard to now call a spade a spade. Professionally fighting for justice is one thing; living justice is another.
Judicial activism is, thus, a double-edged sword. It can cut both ways. The Judiciary for people becomes their Xavier when the other two branches of the State, namely the Executive and the Legislative, miserably begin to manifest failure in their assigned tasks. Then be it the scarcity of sugar in the market, or the rape of a girl; target killing in Karachi or high-cost of onions and electricity, people begin to look towards the Chief Justice for a remedy. The big question that arises in such a situation is: Is he then the right person to look up to?
Before we cite some examples from the American History of what justices can do and what politicians can, it is imperative to understand that people anywhere in the world, and more so in the Indo-Pakistan sub-continent, are starved of justice. Justice is what they yearn for. Often it eludes them because access to it is tedious and expensive; often it gets so delayed that even its delivery equals its denial.
Mr. Jo Johnson in his insightful article published in the Financial Express, September 11, 2007, quotes Justices A. K. Mathur and Justice Markandey Katju of India when both snapped at the country’s Supreme Court, “People in India are simply disgusted with this state of affairs and are fast losing faith in the judiciary because of the inordinate delay in disposal of cases”. Justice Rama Jois in this verdict of 2007, did not like this criticism, and took Justice Katju to cudgels when he said about the Mathur-Katju bench.
They crossed “the Lakshman rekha (the final line) of judicial discipline”. Mathur-Katju’s only ‘sin’ had been that they made some criticism of this over half-a century old ‘Mali-gardener’ case, in which the ‘Mali-gardener’ had already been dead. For Dr. Dhavan, a scholarly critic, Justice Katju’s criticism or shock-treatment had had two sides, “appropriate for a speech but not for a judgment which has created chaos… the phrase ‘judicial terrorism’ comes to mind. Justice Katju fails to distinguish between “judicial activism” and “judicial excessive-ism”.
For him, the first is inevitable, and as it is natural, the other is bad. Kanju was academically right as he always believed, “Judges must know their limits and must not try to run the government. They must have modesty and humility, and not behave like emperors”. But what to do in a situation, as is currently in Pakistan, when the majority of the accused are in power, and the legislative works only to facilitate their stay there.
Justice in India, as in Pakistan, is slow, costly and is ridden with corruption. In 2005, the Center for Media Studies estimated that the public in India paid about $580m in bribes to lawyers, police and court officials in an average 12-month period, often to slow down paperwork. According to Jo Johnson, “Denied access to justice, many Indians rely on extra-judicial remedies.
“One reason the Naxalite insurgency extends to 165 districts in 14 states, covering close to 40 percent of the country and affecting 35 per cent of the population is that the Maoist rebels operate people’s courts that dispense something approximating justice”. Manmohan Singh has termed Naxalism the “single biggest internal security challenge facing India”. What is true of the Naxalites is also true of the Taliban and of terrorism. They became quickly ‘popular’ in Swat, North-Western Province of Pakistan and Baluchistan, especially in the Federally Administered areas as well as in Afghanistan because they resorted to the technique of striking maximum fear through “quick justice.” People do not mind suffering, if only they can watch the rich and corrupt also having their necks getting squeezed in the noose.
The former Chief Justice of India, Mr. M. N. Venkatachaliah, once told the executives of the country, “The highest court of the country has a fine set of teeth, which it could use to wonderful effect if it chose to.” Another former CJ of India, Mr. P. N. Bhagwati also highlighted the same problem when he said, “If the Supreme court exists only for the rich, what is the use of its existence? I have known judges who have sat on judgments for two years”. This kind of judicial activism was benign, because both brought about many reforms in the Judicial system of India.
Looking towards the Supreme Court for actions which fall within the jurisdiction of the Executive and Legislative is a dangerous trend. But it is reflective of a serious malady inflicting the two above named branches. The justices can do a great favor to the people of Pakistan if they just stay non-partisan, and objective in their judgments, and keep interpreting the Constitution in the light of its letter and spirit, and not for safeguarding the interests of a few corrupt. But the problem as said earlier is, and as says Michael Parenti, “The devil himself can quote the Bible for his own purposes… The Supreme Court justices have shown an infernal agility in finding constitutional justifications for the continuation of almost every inequity and iniquity, be it slavery or segregation, child labor or the sixteen-hour workday, state sedition laws or assaults on the First Amendment”.
In the famous Marbury v. Madison case of 1803 the decision established the Court’s right to overturn acts of Congress, a power not explicitly granted by the Constitution. The verdict sounded like music to the lovers of judicial activism. The same chief justice, Marshal in 1819, upheld ‘the right of Congress to create a Bank of the United States when the opponents of the Treasury Secretary, Hamilton pleaded that there was no such provision in the Constitution. CJ Marshall used the doctrine of ‘implied powers, or a loose construction of the Constitution”. Where was CJ Marshal more right from the public point of view, is an open question. Slavery would have ended had it been up to a visionary President Lincoln. In the infamous case of Dred Scott v. Sandford, Dred Scott, a slave was taken by his master from a slave state to a free territory. He applied for freedom on his return on the grounds that he had lived on a slavery free state. CJ Roger B. Taney denied , contending, ‘Blacks were not citizens and therefore could not sue in federal court”. He further inflamed antislavery forces when he said, “Congress had no right to ban slavery from U S territories”. This time who was on the side of the people: the Supreme Court or the Executive?
Another most controversial case had been, Plessy v. Ferguson in which it was the Court that asserted that “equal but separate accommodations” for black on railroad cars did not violate the ‘equal protection’ under the laws. Racial segregation became sanctified, paving the way to the draconian Jim Crow laws of the South. The wrong done in 1896 got corrected by the Court in 1954 when it, in its famous, “Brown v. Board of Education of Topeka” case invalidated racial segregation in schools, declaring ‘separate but equal’ has no place.
It was the Court that in 1966 in the famous Miranda v. Arizona case overturned the conviction of Miranda by ruling that criminal suspects must be warned of their rights before they are questioned by police. Again it was the Supreme Court that in 1973 in its another controversial case, known as Roe v. Wade, legalized abortion, giving birth to endless discussion between the ‘pro-life and pro-choice’ advocates. It may come up again for a review soon. Seattle and Louisville, KY, still use race as a factor in assigning kids to schools. The SC may also take up this case for review. Cases like prayers in schools and gay marriages may also come up for review.
As said The Guardian on December 18, 2009, “Politics and the law are entwined in Pakistan”. The PPP has failed, and its replacement by PML-N offers the people of Pakistan little hope because its main leadership is trite and visionless. It is stuck in its humiliation syndrome of 1999, and beyond Musharraf it does not see much. It has no workable, viable economic or political program except a few clichés. Its ability to tackle with terrorism is dubious. Musharraf needs to be humbled, but will that bring prosperity to Pakistan? The Chief Justice should not do his job; and not theirs. If a few big heads roll in the process, then let it be.
